Close to Home: PD editorial ignored evidence in path dispute

September 18, 2013, 1:18PM

09/18/2013

I am the attorney representing The Villages at Wild Oak in its dispute with the city of Santa Rosa over the scope of a limited public easement on a portion of the Villages' property adjacent to Annadel State Park.

As your Sept. 12 editorial ("Adults acting poorly — over a bike path," Thursday) concedes (somewhat unclearly), that easement was deeded by the previous property owners to the city expressly "for pedestrians and emergency vehicles only."

Your editorial rightly condemns the city's frivolous appeal of its meritless anti-SLAPP motion. (The motion was even more preposterous and arrogant than you've described: By filing a cross-complaint to try to stop the city from encouraging the public to ride bikes and horses over the Villages' private property, the Villages somehow was violating the free speech rights of the city and its representatives.) However, at the same time your editorial unfairly, prematurely and gratuitously slams my client as well, in a false, pox-on-both-your-houses pose of evenhandedness. (How is it "silly" that my client is defending itself when sued by the government?)

My concern here is not simply your pre-judging my client's case in the press, but that in doing so you've chosen to completely ignore the evidence favorable to my client elicited thus far (and cited by the court). As just one example, you describe as "spurious" at least some (unspecified) claims by my client, parroting the city's allegation that its failure to include public "equestrian and bicycle access" at this particular easement in its 1980 approval of the final map annexing this development into the city as "an oversight." You then credulously credit this claim as "supported by the record and a lack of any intention to eliminate bicyclists — or horse riders — from the list of users."

But perhaps the "oversight" is on your part, rather than the city's: Did you miss the section of Judge Eliot Daum's anti-SLAPP ruling that referred to "the self-authenticating documents from the (city's) own records indicating that during the late 1970s (i.e., between the approval of the tentative and final maps), the state Parks and Recreation Department repeatedly objected to any attempt to expand public access to Annadel State Park via the adjacent Wild Oak development?"

Such evidence would tend to show the city's omission of bike and horseback rider access here to be deliberate, rather than inadvertent, wouldn't it?

Did you miss the part of the Villages' pleadings contending that — even if omitting bicycles had, indeed, been an oversight by the city — such a claim had a relatively short statute of limitations (significantly less than three decades, let's just say) to correct it?

I'm curious, as well, about your seeming contention that vague, interim land-use decisions by local governments trump the deeded, specified property rights of landowners. Which property law expert told you this?

Lastly, you imply that the public has been trespassing over the easement for so much time that such longstanding practice should by now have established a prescriptive easement (akin to "adverse possession") for the public to continue doing so. Unfortunately for the city, though, there's a statute on the books since the early 1970s (meant to encourage private landowners to allow recreational use of their property) that prevents any such unpermitted tresspass to "ripen" into a public easement.

Finley Peter Dunne famously once said that the role of the press in a free society is "to comfort the afflicted, and afflict the comfortable." You may want to check your notes on that. In this case, I think you've been applying it the other way around.

I am the attorney representing The Villages at Wild Oak in its dispute with the city of Santa Rosa over the scope of a limited public easement on a portion of the Villages' property adjacent to Annadel State Park.

As your Sept. 12 editorial ("Adults acting poorly — over a bike path," Thursday) concedes (somewhat unclearly), that easement was deeded by the previous property owners to the city expressly "for pedestrians and emergency vehicles only."

Your editorial rightly condemns the city's frivolous appeal of its meritless anti-SLAPP motion. (The motion was even more preposterous and arrogant than you've described: By filing a cross-complaint to try to stop the city from encouraging the public to ride bikes and horses over the Villages' private property, the Villages somehow was violating the free speech rights of the city and its representatives.) However, at the same time your editorial unfairly, prematurely and gratuitously slams my client as well, in a false, pox-on-both-your-houses pose of evenhandedness. (How is it "silly" that my client is defending itself when sued by the government?)

My concern here is not simply your pre-judging my client's case in the press, but that in doing so you've chosen to completely ignore the evidence favorable to my client elicited thus far (and cited by the court). As just one example, you describe as "spurious" at least some (unspecified) claims by my client, parroting the city's allegation that its failure to include public "equestrian and bicycle access" at this particular easement in its 1980 approval of the final map annexing this development into the city as "an oversight." You then credulously credit this claim as "supported by the record and a lack of any intention to eliminate bicyclists — or horse riders — from the list of users."

But perhaps the "oversight" is on your part, rather than the city's: Did you miss the section of Judge Eliot Daum's anti-SLAPP ruling that referred to "the self-authenticating documents from the (city's) own records indicating that during the late 1970s (i.e., between the approval of the tentative and final maps), the state Parks and Recreation Department repeatedly objected to any attempt to expand public access to Annadel State Park via the adjacent Wild Oak development?"

Such evidence would tend to show the city's omission of bike and horseback rider access here to be deliberate, rather than inadvertent, wouldn't it?

Did you miss the part of the Villages' pleadings contending that — even if omitting bicycles had, indeed, been an oversight by the city — such a claim had a relatively short statute of limitations (significantly less than three decades, let's just say) to correct it?

I'm curious, as well, about your seeming contention that vague, interim land-use decisions by local governments trump the deeded, specified property rights of landowners. Which property law expert told you this?

Lastly, you imply that the public has been trespassing over the easement for so much time that such longstanding practice should by now have established a prescriptive easement (akin to "adverse possession") for the public to continue doing so. Unfortunately for the city, though, there's a statute on the books since the early 1970s (meant to encourage private landowners to allow recreational use of their property) that prevents any such unpermitted tresspass to "ripen" into a public easement.

Finley Peter Dunne famously once said that the role of the press in a free society is "to comfort the afflicted, and afflict the comfortable." You may want to check your notes on that. In this case, I think you've been applying it the other way around.

<i>Michael P. Scott, a Sonoma County attorney practicing civil litigation for nearly 30 years, lives and works in Santa Rosa.</i>